From the President's perspective, this makes "sense" if you can get away with it (and if you're inclined to play fast and loose with the Constitution). After all, why should a President bother nominating officers who are likely to be rejected by the Senate when you can simply bypass the Senate's constitutional role entirely?

The excuse the President offers is the Recess Appointments Clause (RAC) of the Constitution, art. II, sec. 2, cl. 3, which provides that "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

The Senate is currently in the midst of an eleven-and-a-half-day adjournment; presumably Fox and the other three "recess appointees" will be appointed toward the very tail end of that Senate recess, just before the Senate returns.

The President's view is (i) that this short Senate adjournment, in the middle of a "Session," is "the Recess" to which the RAC refers, and (ii) that the vacancies for Ambassador to Belgium and the other federal offices "happen" during this "recess," even though the offices became vacant long before the Senate adjourned.

Both assertions are wrong . . . but it is becoming commonplace for Presidents of both parties to act in reliance upon them. If you're interested in further elaboration, I discussed these issues in much greater detail back in August 2005 (when the President "recess appointed" John Bolton to be U.N. Commissioner), and in thesebriefs that I filed with co-counsel challenging the "recess" appointment of William Pryor to be a federal judge.

I don't have much to add here to those previous discussions, except to note that it is extremely difficult to articulate any possible constitutional value or function that might be served by allowing the President to circumvent the Senate's checking function in these circumstances. Whereas the Recess Appointments Clause was included in the Constitution in order to ensure that offices could be filled in emergencies when the Senate is unavailable to offer its advice and consent, it is now being used to make a mockery of the procedure contemplated in the Appointments Clause -- in situations where the Senate's views are readily available, and all too plain. This is constitutional cynicism of the highest order. And yet if the Senate continues to do nothing to counter it, Presidents of both parties will increasingly utilize this newfound (i.e., jerry-rigged) constitutional "authority" to cut the Senate out of the appointments loop altogether.

I'm with 'broken'; Seems like the obvious response, if the Senators really CARE.

Complaints like this have a rather sureal air to me; After the New Deal court converted a federal government of limited, enumerated powers into an omnipotent Leviathan, without changing one word of the Constitution... After holding voice votes without a quorum present has become SOP procedure... After the courts have ruled that the two chambers don't have to pass the same law for a law to be 'legitimately' enacted... Bitching about how long the Senate chamber has to be empty for it to be a "recess" is so petty.

Like one wag said, "For all it's faults, the Constitution is still better than what we have now."

I hope you don't mind an off-topic comment, but this is important: There is a great post on The Carpetbagger Report from a few days ago about the mainstream media's (specifically Time magazine's) ignoring the prosecutor purge scandal.

http://www.thecarpetbaggerreport.com/archives/10367.html

What explains the failure of the mainstream media to cover the purge scandal for so long, and so many other scandals? Do you think somebody just set up newspaper editors to cheat on their wives, and threatened to tell if the editors wouldn’t play ball when they come back some day and ask for something?

It wouldn’t be that hard to do, when you think about it. People wouldn’t talk about it.

The recess appointment clause is just as much a part of the Constitution as the Senate's confirmation power, no more and no less.

If one is going to cry about the President's "abuse" of the spirit of the Constitution by recess appointing Messrs. Bolton and Fox, to be fair one must also note the Senate Dems' "abuse" of their power to deny confirmation to qualified candidates for reasons of political revenge.

In contrast to the demonstrated incompetence of Mrs. Pelousi's recent Mr. McGoo tour of Syria, the Dems refusal to confirm Mr. Bolton after doing a bang up job knocking heads at the UN doesn't pass the laugh test.

Mr. Fox's sin was contributing money to the Swift Boat Vet's group, whose commercial running an old film of Mr. Kerry disgracing his uniform in front of the Senate and lying about his brothers in arms committing war crimes which he never observed probably had a substantial role in derailing Mr. Kerry's 2004 campaign.

The Dems tried to exact political revenge by scuttling his nomination and Mr. Bush bypassed them. Hardly the stuff of great constitutional crises. Rather, this nonsense is petty politics as usual.

I'm glad to see someone else has had the same reaction to recess appointments that I have. It seems to me the concept dates back to the early days of the country, when the Senate wasn't in more or less constant session. It's a shame that the Constitution doesn't say that the appointment expires as soon as the Senate goes back into session -- bad drafting, that.I don't know what the Supreme Court would do with this issue, but a suit challenging the abusive use of recess appointments might be worth a shot -- easier than passing a constitutional amendment to get rid of it. Of course, there's that pesky issue of standing -- though I personally felt injured by the very presence of John Bolton in such an important position.I'll grant that I can think of several recess appointments President Clinton made that I liked, but the practice is still bad -- and it contributes to the growth of the imperial presidency.

You used the phrase "jerry-rigged." What you got against Germans? B^) Jokes aside, you might look for a replacement term that doesn't have it's roots in racism. See this for more, especially the 6th entry.

Nice to see the cowardly, lying cheat DePalma is still vandalizing the place. He'll never be man enough to admit that if it was a Dem appointing someone he didn't like he'd be making the same arguments as Professor Lederman. The difference, of course, is that the Professor is concerned with the rule of law, the upholding of the Constitution, and preservation of the Union. Cowardly, lying cheats of DePalma's ilk are just in it to "win" for "their side" by whatever means are expedient. (Aside, to justwatchingxxx, Bart is a partisan thug who takes a childish delight in slurs and slams...but who hasn't the balls to stand for his misdeeds and has already at least once been shamed into admitting he was mis-spelling the Speaker's name. Since he's reverted to it I have to assume the folks who usually hold his girlish feet to the fire have forsaken Balkinization. Always a pity when the vandals win.)(Apologies to women everywhere for the sexist remarks, not to mention the added insult of being likened to a cowardly, lying cheat.)

I actually dropped in to ask if anyone has a good resource for posting fairly straightforward substantive questions about law. I go to a non-traditional, distance-ed law school, and they are damned stingy with substantive answers. I had thought to go to the recently deceased jdamicus and try getting some traction on the question that's pestering me, not as homework but strictly extra-curricular, about determination of jurisdiction in asynchronous electronic transactions. If you know of a good place to post such a question then please consider emailing me privately with a url. Easiest email is beau (cough, cough) oblios-cap (hrmph) com

Well, the constitution is a living, breathing, organic evolving document don'tcha know? So it just lived and breathed and grew to allow recess appointments. Funny how according to professor Balkin it always seems to live and grow and breath in synch with his preexisting policy preferences, and never in ways that are against his policy preferences, huh?

In any event, the recess appointment power is a nice way to prevent a simple senate majority from nullifying a presidential election be simply refusing to confirm any of the president's cabinet appointments. (interestingly enough, that is what the Democrats planned to do to Lincoln had the South not seceeded).

bart you're as predictable as the sun rising in the east-are you on retainer from the administration?However,please explain the relevance of the seemingly pointless reference to Pelosi(or, if you prefer the more sophmoric spelling, Pelousi-have you ever considered your own tag line,similar to your namesake's "Eat my shorts.""I know you are but what am I?"would be perfect for you.)The constitutional provision for the necessity of recess appointments needs to be read in the context of the realities of communication and travel in the 18th century.

Whereas the Recess Appointments Clause was included in the Constitution in order to ensure that offices could be filled in emergencies when the Senate is unavailable to offer its advice and consent, it is now being used to make a mockery of the procedure contemplated in the Appointments Clause

Sounds like you're relying on the original expected application of the Recess Appointments Clause . . . .

"It's a shame that the Constitution doesn't say that the appointment expires as soon as the Senate goes back into session -- bad drafting, that."

No, not really. The original expectation was that these offices were going to actually be needed, (Granted, our bloated government today is full of offices which could be left empty for years without appreciable harm.) and therefore, extended vacancies were to be avoided. By ending recess appointments at the end of the term, the Senate has time, when they come into session, to take care of any pressing business, and then examine a nominee's merits, before moving to confirm or reject, without causing said extended vacancy.

As Federalist 67 makes clear (well, as clear as Hamilton ever makes anything) Bush is completely off the wall on this. I suppose that the only remedy will turn out to be impeachment and conviction, and I'm not talking about for the ambassador.

Mike: quite so. The clause really has outlived its original purpose, except perhaps in the case of a severe terror attack. Ordinarily the Senate can be convened to debate the confirmation of a vital officer within a day (or at most two) of a vacancy arising. It's nothing like the days when the fastest communication and transportation mediums were hoofed animals, and the Senate might have taken many weeks to convene.

Robert Link's objection to "jerry-rigged" is based on a totally non-authoritative source. However, it turns out that there is a good reason to suggest switching to "jury-rigged," namely to correctly reflect the word's nautical heritage. The OED shows "jury-rigged" usage back to 1788, derived from the earlier "jury mast," which has usage dating to at least 1616. By comparison, for "jerry-built" they have examples only back to 1869, and "jerry-rigged" not at all. As to the suggestion that this has anything to do with Germans: the use of "Jerry" for Germans appears to be purely a 20th-century phenomenon.

The situation would be different if Bush had simply waited for a recess in the Senate to appoint someone. Petty politics, sure, but hey someone needs to do the job, and why not avoid some conflict and get someone you need to reward into the position?

What makes this egregious to me is that the name had been submitted to the Senate, where it became clear the Senate wasn't going to approve at all. Rather than submit a new name, the name was pulled, and the executive waited until the "recess" to appoint the very person the Senate disapproved of. That's utter contempt of Congress, and certainly not in line with the "I hear what the people have said" rhetoric after the election. Of course, that disparity isn't surprising.

The "recess" thing gets me. If 11 days is now sufficient to qualify as a "recess," Congress had better hope the trend doesn't continue. Those four day weekends they enjoy may become "recesses." Taken to the logical extreme, the President could start making all his appointments at 2AM, since the Senate is technically in recess.

Bush is not egregiously worse than Clinton in his use of recess appointments, but that's scarcely much of a defense.

My only point here is that this is really small potatoes when it comes to constitutional outrages, compared to a lot of what the Prof. apparently accepts without blinking. You barely have to twist the language at all... And once you've signed onto the "living" Constitution, you're in a poor position to complain when somebody else plays the game.

"Before his speech, Bush stood in a dusty, rocky field as soldiers explained how they detect and disarm homemade bombs, called Improvised Explosive Devices. Bush operated a remote-control robot, playfully steering the device straight into a row of news photographers."

... to be fair one must also note the Senate Dems' "abuse" of their power to deny confirmation to qualified candidates for reasons of political revenge.

Ummm, last I checked, wasn't just Democrats that refused to confirm appointements. But I guess we can forgive "Bart" his LTM lapses.

But: What's abus[ive] about refusing to confirm someone?!?!? You want to get literal (which "Bart" claims to be, but is not very adept at), "advice and consent" has no such limitations as to why the Senate may withhold consent. There's no semantic "word play" such as a distinction between "adjournment" and "recess", and what constitutes a "session". The Framers clearly wanted to put a check on the appointment of ambassadors and such against the will of the Senate (which is clearly what happened here). Who is "qualified" is not a matter for the preznit alone to decide. And what is "political revenge", I guess, depends on whose ox is gored, but the Constitution is silent on that.

I'm sure that "Bart" will turn around and csay the firing of the U.S. attorneys was then okey-dokey. And yes, political firings are not prohibited by the Constitution (or we'd be getting the hemp ready as we speak). Obstruction of justice, and denial of equal protection of the law, are.

(interestingly enough, that is what the Democrats planned to do to Lincoln had the South not seceeded).

You need to watch TDS. Jon Stewart interviewed John Bolton, and then eviscerated Bolton's false claim that Lincoln appointed a servile and sycophantic cabinet of "yes men" (like Bolton) the following day.

I appreciate the Franklin and Pryor amicus brief links, which I believe I had missed during the 2005 epoch Bolton initial UN appointment. It appears some of the web locations contained in footnotes in those two filings locate resources I have needed for other work in which I have embarked. It was interesting to see TG and AH as contributors there, as well, both respected practitioners who have written in the field of constitutional law, and supported tempered discussion especially at times of radical departures from explicit standards of checks and balances such as the historic autocratic appointment policy of the Bush administration. I agree that it is a test for the Senate saliently to assess the intensity of its view of its intended degree of participation. In my view congress, and the political parties need to evaluate the effects of the de facto rule-by-cloture+1 paradigm so artfully employed by the current administration. Interestingly, it seemed part of the discussion about the sunsetting of the independent counsel statute was that construct's contribution to increased executive circumvention of checks and balances as a way to govern during interbranch tensions.

My view is the shift is significant, and understanding its portent a worthwhile endeavor. It would be foolhardy to accept the soporific reassurances and faint blandishments from folks who favor authoritarian solutions, though those partisans are voicing their views attempting to gloss over the visceral issues here, changes which otherwise might become the equivalent of the parliamentarization of the US system of government.

Bush is not egregiously worse than Clinton in his use of recess appointments, but that's scarcely much of a defense.

Yes, he is. But I'm glad that you've pointed out that those people screaming for the impeachment of Clinton (and actually voting out a couple articles) have certainly set, by their own standards, a very low bar for themselves. Would that justify a similarly low bar for imepaching Dubya?

Sure. I happen to think the Democratic bill of particulars against Bush includes some matters that are really legitimate policy differences, and excludes some abuses which Demcrats simply don't mind, but Bush is, to my thinking, eminently impeachable. The bar to impeachment has, I think, been set much too high.

Hell, I'd have impeached Ford for pardoning Nixon. Quid pro quo, anyone? And Iran-Contra was reason enough to impeach Reagan; That's why we have a unitary executive, after all, so that we've got one person to pin the blame on. Clinton ought to have been impeached over too many matters to list here, of which the one he was impeached over was perhaps the least.

The 20th century would have been a regular bloodbath for executives if my standards for impeachment had prevailed.

Sure. I happen to think the Democratic bill of particulars against Bush includes some matters that are really legitimate policy differences, and excludes some abuses which Demcrats simply don't mind, but Bush is, to my thinking, eminently impeachable. The bar to impeachment has, I think, been set much too high.

Hell, I'd have impeached Ford for pardoning Nixon. Quid pro quo, anyone? And Iran-Contra was reason enough to impeach Reagan; That's why we have a unitary executive, after all, so that we've got one person to pin the blame on. Clinton ought to have been impeached over too many matters to list here, of which the one he was impeached over was perhaps the least.

Well, thanks for your candour and your consistency. It is appreciated, Brett.

The "IOKIYAR" crowd needs to take some lessons from you (see my Pelosi links above, for example).

If any congressional representative or either party went to Syria with a foreign policy which differs from that of the President, especially one which grants relief from the international isolation of this terrorist regime, then they are definitely in the same category as Mrs. Pelousi.

We elect one branch of government to make foreign policy and it ain't Congress.

However, I am unaware of any Elephant in Congress who was mendacious enough to lie to the Syrians about an Israeli peace overture which they did not make or stupid enough to say ""the road to solving Lebanon's problems passes through Damascus." That is like saying that "the road to solving Czechoslovakia's problems in 1938 passes through Munich." Oh, I think someone by the name of Chamberlain already said something along those lines.

I hope you don't mind an off-topic comment, but this is important: There is a great post on The Carpetbagger Report from a few days ago about the mainstream media's (specifically Time magazine's) ignoring the prosecutor purge scandal.

http://www.thecarpetbaggerreport.com/archives/10367.html

What explains the failure of the mainstream media to cover the purge scandal for so long, and so many other scandals? Do you think somebody just set up newspaper editors to cheat on their wives, and threatened to tell if the editors wouldn’t play ball when they come back some day and ask for something?

It wouldn’t be that hard to do, when you think about it. People wouldn’t talk about it.

If any congressional representative or either party went to Syria with a foreign policy which differs from that of the President, especially one which grants relief from the international isolation of this terrorist regime, then they are definitely in the same category as Mrs. Pelousi.

I'm sure that "Bart" will turn around and say the firing of the U.S. attorneys was then okey-dokey. And yes, political firings are not prohibited by the Constitution (or we'd be getting the hemp ready as we speak). Obstruction of justice, and denial of equal protection of the law, are.

On that note, Dubya is free to promote hacks and resume-padders like Rove's buddy Griffin in Arkansas. Like Micheal Brown. Or the hordes of Republican contributors and wet-behind-the-ears College Republicans the maladministration sent over to work on the CPA despite having no experience for this important work (as detailed in "Imperial Life in the Emerald City: Inside Iraq's Green Zone", by Rajiv Chandrasekaran) ... which is part of the reason that Iraq is such a hell-hole now. The preznit can indeed hire only apparatchiks and/or incompetents (as he's demonstrated), and we have to suffer through it up until the point we say "enough's enough" and impeach him. The preznit can ruin the country ... oh, waiddaminnit.

But we don't have to stand for it. And we can resist, obstruct, and rectify by any means available, this taking the country down the toilet.

The Columbians were complaining about limits prior Dem congresses had put on congressional aid to Columbia. Hastert told the Columbians to come to him to change those laws and not to the White House.

What is the problem?

Congress has the power of the purse and may send our tax money to Columbia under the terms it sees fit to impose or not to impose. I am not sure cutting the White House out of the process was politically wise because the President has a veto. However, Congress certainly has the power to communicate with those to whom it is providing money.

In 1997, Rep. Dennis Hastert (R-IL) led a delegation to Colombia at a time when U.S. officials were trying to attach human rights conditions to U.S. security assistance programs. Hastert specifically encouraged Colombian military officials to “bypass” President Clinton and “communicate directly with Congress.”

…a congressional delegation led by Rep. Dennis Hastert (R-IL) which met with Colombian military officials, promising to “remove conditions on assistance” and complaining about “leftist-dominated” U.S. congresses of years past that “used human rights as an excuse to aid the left in other countries.” Hastert said he would to correct this situation and expedite aid to countries allied in the war on drugs and also encouraged Colombian military officials to “bypass the U.S. executive branch and communicate directly with Congress.”

I am curious whether you think this is unconstitutional, or if it is instead a flaw in the Constitution caused by unanticipated developments — I ask because some of your co-bloggers are not shy about critiquing such aspects of the constitution.

Second, I wonder if this is more an example of transgressing against the spirit of the Constitution than of violating any legal restriction created in that document. An analogy would be to congressional behavior: clearly the original spirit of the Constitution contemplates that Congress will itself examine the Constitutionality of potential laws and refuse to pass bills that are found lacking. That they no longer try to do this certainly violates the spirit of our founding document, but it is unclear that there is a legal consequence aside from potential Judicial nullification (where the Congress grants them jurisdiction).

As to the question of non-originalism, I would be interested in hearing someone's theory as to why this practice, which apparently goes at least as far back as Teddy Roosevelt making appointments during a one-day recess, would be unconstitutional while other pieces of constitutional evolution would not.

As to commenter Bart DePalma's point about the Senate's duties, while Bolton is a different story, it strikes me as quite plausible that the founders would not have had a problem with the Senate refusing to give a cushy job to someone who had served as an attack dog for the President appointing him get elected.

"I would be interested in hearing someone's theory as to why this practice, which apparently goes at least as far back as Teddy Roosevelt making appointments during a one-day recess, would be unconstitutional while other pieces of constitutional evolution would not."

"Living" constitutionalism has no principled way of distinguishing between legitimate and illegitimate divergences from what the text actually says, or prior, widespread understandings. Recess appointments are "unconstitutional" under this 'interpretive' technique because the people doing the interpreting don't like Bush. 8 years ago the practice probably struck them as ok, and in a few more years it will be kosher again.

That's the nice thing about an 'interpretive' technique that has the Constitution "evolving" without the text changing. You can never be inconsistant, because the Constitution just evolves back and forth at your convenience.

Indeed, recess appointments are rather small potatoes compared to some of the constitutional outrages which have become routine. But it's Bush making them right now.

Article II of the Constitution says, "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. "

The word "next" in "next session" implies that the Framers of the Constitution meant "session" to mean the time between recesses and not the two-year term of Congress. If the framers meant "session" to mean the latter, then the correct term would be "current session" rather than "next session." And does it make sense that the Framers would have created a major loophole for bypassing the will of the Senate by allowing these recess appointments to be valid for the remainder of the two-year term of Congress? And if the Framers intended to create such a loophole, then why are these unapproved temporary appointments restricted to the recesses?

The "Fox" is in the henhouse. Bush is an adult spoiled brat who has gotten his way for far too long.

Make no mistake, it's an abuse, alright. But it's an abuse that's been practiced for decades, by Presidents of both parties, and Bush isn't the worst offender. And as Constitutional usurpations go, it's small potatoes.

I'd like to know what principled basis "living" Constitutionalists have for complaining about this practice, while approving of far greater violations. Looks like a textbook example of "evolution" to me.